What Happened
The U.S. Department of Justice (DOJ) Office of Legal Counsel (OLC) issued a memorandum, or slip opinion, raising serious concerns about how the federal government intends to approach community integration for people with disabilities. Olmstead remains the controlling law, and disability rights remain unchanged. However, the memorandum may signal a potential shift in how the DOJ and federal agencies may approach enforcement and policy.
Why Olmstead Still Matters
For more than 25 years, Olmstead v. L.C. has affirmed that, under the Americans with Disabilities Act (ADA) people with disabilities should not be unnecessarily institutionalized when they can be safely supported in their homes and communities. Institutions are dangerous and continue to expose people to abuse, neglect, and isolation.
This landmark decision has enabled countless individuals to leave institutional settings and has required states to invest more in Home and Community-Based Services (HCBS), such as Utah’s Division of Services for People with Disabilities (DSPD) waiver services. Yet despite this progress, the Disability Law Center continues to document serious incidents of abuse and neglect in institutional settings. More than ever, people with disabilities and their supporters must speak out to state and federal leaders about the urgent need to expand rather than restrict access to community-based services. This means increasing funding, reducing waiting lists for the thousands waiting (some for decades), and ensuring that people can receive the support they need in their homes and communities without delay.
What Has Changed
- The memorandum signals a potential shift in DOJ enforcement priorities and will guide federal agencies to not prioritize community services.
- Enforcement approaches often change across administrations
What the DOJ Memo Does Not Do
While the memo is very concerning, it does not change the law. The memorandum:
- Does not overrule Olmstead
- Does not bind federal courts. Courts, not the DOJ, determine compliance with the law.
- Does not eliminate, repeal, or weaken the ADA or Section 504
- Does not invalidate existing court orders or case law
- Does not change the legal standard that unjustified institutionalization is discrimination
What Remains in Place Now
- States still have obligations to provide community-based services as options
- Existing waiver services remain unchanged
- People waiting for services are unaffected by the memorandum itself
- Individuals retain the right to live in integrated settings based on their needs and preferences
- The HCBS settings rule and other federal regulations remain in effect. Federal regulations cannot be rescinded without a formal rulemaking process, including public notice, opportunity for comment, and agency consideration of those comments.
- Private individuals and advocates can still enforce Olmstead rights in court.